Holder’s New Rules for Pursuing Reporters

It seems so long ago now—way back in May—when the revelations that the government had secretly obtained phone records from the A.P. and e-mails from the Fox reporter James Rosen were enough to shock the conscience of the Fourth Estate. In those pre-Edward Snowden days, outrage from the media spurred the President and the Department of Justice to hastily arrange meetings between various interest groups, members of the news media (and their lawyers, including me), and Attorney General Eric Holder and other top officials. Friday afternoon, the D.O.J. released its Report on Review of News Media Policies, describing a set of changes to the Department’s policies regarding when and how the government can seek information from the media.

On first review, the Department has taken its task seriously, and the changes are significant and noteworthy. They could go a long way toward limiting the secret collection of media-related information by the government. There is a new, and stronger, presumption of notice before a subpoena or other process is issued. Notice is important, because it allows the media a chance to negotiate or limit the information sought by the government, or to go to court in an attempt to quash the subpoena. (The A.P. had no prior notice, and so no opportunity to go to court.)

Under the policy announced on Friday, the presumption of advance notice will apply “in all but the most exceptional cases”—that is, unless the Attorney General affirmatively determines “that for compelling reasons, advance notice and negotiations would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm”—rather than just that it theoretically could. This is more open than the previous standard, under which there would be no notice unless the government affirmatively found that it would not negatively affect an investigation. And the possibility of a delay owing to negotiations or judicial review would not count as a compelling reason.

Much of the outrage in the Fox case had to do with the affidavit in support of the search warrant, which asserted that Rosen had “aided and abetted” a violation of the Espionage Act. In truth, the government was in a complicated position: under the Privacy Protection Act of 1980, search warrants against members of the media are not permitted at all unless there is probable cause to suspect a journalist of violating the Espionage Act (or one of a few other statutes). And, because of another federal statute, the only way to get those e-mails was via search warrant. So the government may have felt it had no good option save for accusing the reporter of violating the Espionage Act himself.

The new policy addresses this in several ways. The introduction states that “members of the news media will not be subject to prosecution based solely on newsgathering activities.” The policy also envisions issuing search warrants under the Privacy Protection Act of 1980 against members of the news media only when they—the journalists—are the focus of a criminal investigation for conduct not connected to ordinary newsgathering, and could not do so if the sole purpose is the investigation of another person—for example, a source.

Further, search warrants would be treated like subpoenas, and could only be issued with the approval of the Attorney General, and only after the A.G. has considered several factors: Was the information sought essential to the investigation? Had other reasonable steps to gain it been exhausted? And was the request narrowly tailored? The presumption of advance notice will also be applied to search warrants.

My reading is that, had this policy been in effect earlier, a search warrant could not have been issued for the e-mails of a reporter like James Rosen. His activities were all connected to ordinary newsgathering, and the target was a government employee suspected of leaking. Whether this is also the D.O.J.’s interpretation remains to be seen.

There are additional recommendations, including an annual release of statistical data regarding the use of media-related processes and the establishment of a News Media Dialogue Group to assess the impact of the changes. The D.O.J. is setting up a News Media Review Committee, made up of senior Justice officials, to provide some additional assessments of the merits of requests for information from journalists and to raise relevant concerns. In the absence of judicial review, this committee should act as an in-house vetting group, and perhaps as a counterbalance to prosecutors.

These policy changes are a substantial and important first step in limiting unnecessary and overbroad requests for reporters’ information and confidential sources. They will work to, in Holder’s words, “help ensure the proper balance is struck when pursing investigations into unauthorized disclosures.” Of course, maybe this is all for show—we now know that the N.S.A. has been collecting all of our information anyway, though the government claims that it is not using it, not yet.

Photograph by Brendan Smialowski/AFP/Getty

Lynn Oberlander, formerly the general counsel of The New Yorker, is the general counsel of First Look Media.